Nat’l Ass’n of Family and Life Advocates v. Becerra

In a 5-4 party-line decision, the Supreme Court holds that the First Amendment rights of “pro-life” pregnancy centers are violated by California’s disclosure requirements.

The Issue: In 2015 California passed legislation to protect vulnerable pregnant women from being misled by “crisis pregnancy centers” [CPCs] – entities presenting themselves as full-service women’s health clinics, but actually operated by opponents of abortion to pressure pregnant women not to consider abortion as an option. The Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act [FACT Act] required licensed CPCs to prominently disclose that California offers publicly funded family planning services, including contraception and abortion, and requires unlicensed clinics to prominently disclose that they are not licensed and do not have a licensed medical provider. A national organization of CPCs challenged the law as compelling speech by CPCs in violation of their free speech rights under the First Amendment.

Why It Matters:California’s Legislature found that CPCs employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.” There are now more CPCs in this country than there are abortion clinics, including approximately 200 in California alone. The Legislature also found high numbers of women with limited resources among unintended pregnancies in California, many of whom were unaware that state funding was available for reproductive care.

The case also has potentially far-reaching doctrinal implications. Subjecting factual disclosures in contexts of commercial and professional speech to heightened First Amendment review, as portended in this case, would not only make it harder to protect the public from deceptive business practices, but also threaten regulations requiring nutritional labeling, warnings of pharmaceutical side effects, securities disclosures, reports of releases of toxic substances or effluent pollutants, and notification of workplace hazards, to name just a few.

Public Good’s Contribution:Public Good filed a brief in the Supreme Court on behalf of consumer and public health organizations, arguing that the case should be analyzed as a routine case of regulating false advertising. The brief documented the extensive history of deception by CPCs, and pointed out that it is well established in case law that the First Amendment leaves government substantial latitude to protect the public from misleading commercial and professional speech. That the case concerns services offered free of charge and concerns a topic about which there are strong feelings, does not – contrary to the CPCs’ arguments – change the applicable standard of review.

Amici represented by Public Good: Public Good’s brief in the Supreme Court was filed on behalf of Black Women for Wellness, Consumer Action, the Consumer Federation of California, the Public Health Law Center, and itself.

Outcome: In a 5-4 decision, the Supreme Court held that the CPCs were likely to prevail in their First Amendment challenge. The ruling is likely to make it harder to regulate deception or to require disclosure of relevant information in a wide variety of commercial and professional speech, although the Court stopped short of drastically overhauling commercial and professional speech in ways suggested in the decision. The decision left both its rationale and the standard of review going forward somewhat muddled, as it sought to reconcile its decision with an earlier decision upholding a state law requiring doctors to inform women contemplating abortion of the availability of adoption services, as well as “inform” them about the purported health risks of abortion.